No. 287 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, No. 568 of 1975.
Dennis V. Williams, Assistant Public Defender, Erie, for appellant.
Frank J. Scutella, Assistant District Attorney, Erie, submitted a brief on behalf of Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ. Spaeth, J., files a concurring and dissenting opinion.
[ 291 Pa. Super. Page 525]
Following a jury trial, appellant was convicted of robbery. The trial court subsequently denied appellant's post-verdict motions and imposed sentence. No direct appeal was taken. Thereafter, appellant filed a petition pursuant to the Post Conviction Hearing Act (PCHA).*fn1 After a hearing, the post-conviction court concluded that appellant had been denied his right to appeal from judgment of sentence and granted him permission to file this appeal nunc pro tunc.
Appellant contends first that the trial court abused its discretion in refusing to grant a continuance which his trial counsel had requested on January 19, 1976, the scheduled trial date. Trial counsel sought the continuance in order to secure the presence of four witnesses who resided in Mississippi. Counsel believed that those witnesses would testify that at the time the robbery was committed appellant was with them in Mississippi. He stated also that he had just learned that they would not attend appellant's trial because one of them, appellant's grandmother, was seriously ill. In
[ 291 Pa. Super. Page 526]
response to the trial judge's questioning, counsel stated that he had not attempted to verify that the grandmother was in fact ill. Counsel acknowledged that during the May, 1975 and September, 1975 court terms, appellant's previous counsel had been granted continuances to enable him to attempt to secure the testimony of the same witnesses.*fn2 Counsel stated also that he could not assure the court "that [the witnesses] would be present if the trial [were] put off until the month of February . . . ."
"'It is well settled that the grant of a continuance rests within the sound discretion of the trial court and that the decision to deny the continuance will not be reversed unless a clear abuse of discretion is shown.'" Commonwealth v. Waters, 276 Pa. Super. 584, 591, 419 A.2d 612, 615 (1980) (quoting Commonwealth v. Hughes, 264 Pa. Super. 118, 126, 399 A.2d 694, 698 (1979)). "When there is no assurance that a witness can be procured, . . . then denial of a continuance is proper." Commonwealth v. Plath, 267 Pa. Super. 1, 6, 405 A.2d 1273, 1275 (1979) (citing Commonwealth v. Foreman, 248 Pa. Super. 369, 375 A.2d 142 (1977)).
In the instant case, we conclude that the trial court did not abuse its discretion in refusing to grant a continuance. Despite the granting of two previous continuances, appellant's counsel had been unable to secure the witnesses' presence. Additionally, trial counsel was unable to assure the trial judge that he could procure the witnesses if a continuance were granted. Under these circumstances, we decline to reverse the trial court's refusal to grant a continuance.
Alternatively, appellant contends that his trial counsel was ineffective for failing to act diligently to secure the presence of the witnesses. "[C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate ...